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Survey of property rights and conditions of access to genetic resources on the international level
Material found in nature that has not been manipulated or changed can generally not be protected
as intellectual property, be it patents or plant breeders' rights. Derived material can be protected,
precluding the provider of the base material from the use of the derivative.
This has heightened concern among developing countries that when they provide genetic material
to international genebanks which in turn make it freely available and allow genetic manipulations
on that material the results of which can then be protected and will not be available to the
providers of the original material, that this violates the spirit of the Biodiversity Convention.
6 Issues Calling for Solution
Three key problems call for immediate attention: access to new germplasm; the treatment of
germplasm currently held in genebanks, and the thorny issue of farmers' rights. The last two
aspects were left out from the Biodiversity Convention; and how they should be included is now
being negotiated in FAO.
6.1 Access to New Material
A very serious concern is that the Biodiversity Convention will slow or impede the flow of genetic
material, and with it, international research collaboration.
Article 3 grants States "the sovereign right to exploit their own resources according to their own
environmental policies", while Article 15 states: "Recognizing the sovereign rights of States over
their national resources, the authority to determine access to genetic resources rests with the
national governments and is subject to national legislation.“ This terminology goes well beyond
the letter of the FAO Undertaking, even in the interpretation of the 1991 FAO Resolution, in that
it denies a commitment to release and exchange germplasm. Article 15.2 merely requires a state
to "endeavor to create conditions to facilitate access to genetic resources for environmentally
sound uses... and not to impose restrictions that run counter to the objectives of [the]
Convention".
Some germplasm users may be unconcerned because (a) genetic material they need is already
stored in genebanks and thus removed from the scope of the Convention; and (b) what is not in
genebanks might be obtained outside the Convention since the export of genetic material is
difficult, if not impossible, to police; a few seed grains are normally enough to export a variety.
But many users, particularly in the biotechnology industry, seek systematic access to resources not
yet collected and stored.
The user community, following their different interests, is likely to react differently to the new
situation. Industry will swiftly adjust to the new situation. Merck & Co, the largest U.S.
pharmaceutical manufacturer, recently (and well before the approval of the Biodiversity